Thursday, 30 March 2017
Human Rights Legislation Amendment Bill 2017; In Committee
I move government amendment (1) on sheet HV208:
(1) Schedule 1, page 3 (after line 25), after item 4, insert:
4A Before subsection 18C(3)
(2C) For the purposes of subsection (1), if an act done by a person consists of:
(a) making a statement; or
(b) making a comment; or
(c) making a remark;
(whether orally, in a document or in any other way), then the making of the statement, comment or remark may be reasonably likely, in all the circumstances, to harass another person, even if the statement, comment or remark is not made in the presence of the other person.
(2D) For the purposes of subsection (1), if an act done by a person consists of:
(a) making a statement; or
(b) making a comment; or
(c) making a remark;
(whether orally, in a document or in any other way), then the making of the statement, comment or remark may be reasonably likely, in all the circumstances, to harass a group of people, even if the statement, comment or remark is not made in the presence of one or more members of that group.
The purpose of this amendment is to clarify the meanings of the words 'intimidate' and 'harass' in section 18C as it would appear, assuming the bill is passed. The bill proposes to expand the meanings in two ways. In the first place, there is within the bill an expanded meaning given to the term 'harass' so that it is clear that a single act may constitute harassment and that it is not necessary for there to be a multiplicity or series of acts for the prohibition against harassment to be violated. That, of course, depends on the circumstances of the particular case.
This amendment adds a further clarifying definition to the words 'intimidate' and 'harass' by making it clear that those prohibitions may be violated even if the statement, comment or remark said to constitute intimidation or harassment is not made in the presence of the other person. There are many circumstances which we can envisage where conduct may be intimidating or constitute harassment even though it is not made face to face. An obvious example is stalking a person through social media and uttering intimidating or harassing remarks through social media. Another example would be delivering documents or letters through the mail or sending an email to a person which contained intimidating or harassing conduct.
To put the matter beyond doubt, this amendment makes it clear that conduct of that kind and indeed any conduct not in the presence of the person who is the victim which would otherwise constitute harassment or intimidation does constitute harassment or intimidation, notwithstanding that it was not made in the presence of the victim.
Attorney, with respect to the redefinition—and I call it that because it extends the dictionary definition of 'harass', because you are referring to it as a single instance rather than multiple instances, which is common across most of the definitions—there is also a reference, as I understand it, and please correct me if I am wrong, such that someone can be harassed even if they are unaware of the actual act itself. Is my understanding of that correct?
I am not seeing that, Senator Bernardi. I should make it clear that that part of the definition is already in the bill. It is not part of the government amendment that I am moving now. But just to clarify the point, and to go to the section of the bill to which you refer, the reason that amendment was made is that there is in fact some ambiguity both in the case law and in the dictionary definition of whether harassment requires more than one act. In the Macquarie Dictionary, the word 'harassment' is defined exclusively in terms of a series or multiplicity of acts, but in the Oxford English Dictionary, the word 'harassment' is defined in at least one of its senses as conduct which might be constituted by a single act. The same is the case in the case law. That is why we have clarified the definition. But in relation to the specific question you asked, I am not aware of the genesis of that proposition.
When you are referring to the genesis of the proposition, I have been advised that in respect of your amendment for 'harass' in regard to the bill, someone can still claim or lodge a claim for being harassed even though they were unaware of the actions until some time subsequent, so it did not directly impact upon them. Is this correct?
I am always a bit cautious about dealing with hypothetical cases in a parliamentary debate. However, it is certainly not the intention of the definition of 'harass' or, indeed, 'intimidate' that the government has included to include conduct of the kind that you refer to. So that harassment according to its ordinary speech meaning—which is as the explanatory memorandum explains, and subject to the two clarifying definitional amendments to which I have referred—I would have thought requires knowledge by the victim of the harassment of the fact of the harassment taking place.
To facilitate the committee stage while Senator Bernardi is on the phone—he may still have further questions—I can indicate briefly, and consistent with the comments of Labor senators during the second reading debate and indeed our amendment with respect to schedule 1, which we are yet to come to, that Labor opposes all changes to section 18C of the Racial Discrimination Act, including the offence of harassment. This amendment cannot cure the defects in the government's approach to watering down the longstanding protections against racial hate speech.
I indicate that the Greens, as we have consistently said over a long period of time, do not support any changes to section 18C of the Racial Discrimination Act, and, consistent with that position, we will not be supporting any of the amendments that the government is moving to its own amendment bill that itself seeks to amend section 18C. In doing so, we will maintain absolute consistency in our view that there has been no case made by the government for a change to section 18C, none whatsoever, despite lengthy and at times acrimonious debate in this place and the broader Australian community. We have listened to multicultural Australia. We will stand shoulder to shoulder with them. They have asked us to support retaining section 18C precisely as it is currently worded. On that basis we will be opposing this amendment.
Attorney-General, can you explain why the word 'harass' is now to be included where previously it was not. Can you comment on or explain or confirm the fact that the inclusion of harassment and intimidation refers to the desire of the person accused of harassing and intimidating to actually have an impact on the behaviour of the person against whom the harassment and/or the intimidation has been levelled, in contrast to offend or to insult, which is more associated, as I understand it, with the offence to the person but without having an effect on the behaviour or the daily activity of the person who would be the subject of the offence or the intimidation.
Senator Back, the simple answer to the first part of your question is: because the inclusion of the word 'harass', which is a grievous shortcoming in section 18C as it currently stands, is intended to overcome that shortcoming. The concept of harassment, which is very commonly used in antidiscrimination statutes, both in Australia and overseas, captures the notion of conduct which impinges on a person in an unwelcome manner so as to limit or restrict their freedom. It is in a sense broader than 'intimidate', because the concept of intimidation involves causing fear in the person to whom it is directed. It is possible to imagine conduct that constitutes harassment but does not constitute intimidation, because not every person who is harassed is made fearful, but that does not mean that their freedom, their amenity, their life is not in some way vexed or annoyed or a nuisance is made to them by the conduct concerned.
In relation to your second question, Senator Back, it is not an element of this provision that the offender, the person whose conduct is prohibited, has any particular motive. There is no requirement, as in the criminal law, of a guilty mind, as it were. There is no requirement of malice. There is no requirement that the conduct be other than conduct which meets the definitions of 'intimidate' or 'harass'. But the reaction of the person who is the victim—and this goes, so far as 'harassment' is concerned, in part to Senator Bernardi's question—is relevant, so that, if a person, for example, were oblivious to or unaware of conduct, it would be difficult to see how that were harassing if it had no effect on them, or intimidatory if it did not cause fear in their mind.
Anyway, the overall answer to your question is: we are trying to bring this statute more closely into conformity with discrimination law best practice, with Australia's obligations under the Convention on the Elimination of All Forms of Racial Discrimination. Section 18C, regardless of the rhetorical claims made by those who oppose what the government is trying to do, does not do that. These amendments make section 18C a more fit, suitable and better expressed protection against racism.
Minister, in your second reading speech you made the observation that there is no other jurisdiction in the world that has legislation at the moment equivalent to 18C. Could you explain to the chamber what protections there are in other jurisdictions equivalent to our own that give the right of freedom of speech whilst at the same time protecting those who might otherwise be harassed and/or intimidated?
Senator, I must confess to you that I am not familiar with the anti-racial discrimination laws of all 178 states party to the convention. But I can say that there is none which deals with the issue the way section 18C does. The concept of intimidation, the concept of harassment and the concept of vilification are the core concepts in legislation of this kind, which is why the government has adopted them.
Attorney, I just want to go back to the clauses in your amendment. It says:
… the making of the statement, comment or remark may be reasonably likely, in all the circumstances, to harass another person, even if the statement, comment or remark is not made in the presence of the other person.
How can you be harassing someone if you are not in contact with them or in the presence of them?
That is why we are using the expression 'in the presence of'. The example I gave in introducing the amendment was the use of social media as a tool of harassment. We are well familiar with Twitter trolls, for example. We are well familiar with people who send intimidating or harassing text messages. That could very easily constitute harassment, even though not made in the presence of the victim.
Senator Brandis, I apologise in advance if you or anyone else in the chamber had to endure my presentation earlier, on the second reading, but I will take a little bit of time to lay down the basis for my question, and I will value your comments.
I have five or six matters, but I will deal with them one at a time. My first area of interest is to understand what changes will occur as a result of these amendments to the process. I might just set the scene. I spoke earlier, as did a number of other speakers, with respect to the QUT issue, where, as you know, there were three students who became entangled in the process over a period of time. It would appear to me—and you may contradict me—as if there were an absence of natural justice in some aspects of how that particular case was managed. In particular, it would seem that there was a long period of time where at least one of the students, and perhaps all of them, was not even aware that the process was in train, thereby of course denying them any ability they may have had, with a contemporary memory, to be able to, for want of a better term, defend themselves, or at least give instructions to those who might provide them with professional advice.
As it went on, it is said that they received pro bono assistance from legal identities in the process. Quotes have been made that, had they needed to engage legal assistance, the cost of such legal support might have been greater than $10,000 per person. As I said earlier, I found, based on my experiences in life in dealing with lawyers—and I do not want to reflect adversely on lawyers; I am surrounded, it would seem—
Or vets! The fact of the matter is: that seemed to be on the light side. So, if it were a matter that was complex and protracted, I would think that the cost burden on an individual, in this case a student, could have been substantially higher, perhaps even in the scope of $20,000 to $30,000.
In addition to that, we had the costs that would have been borne in this case, I suspect, by the educational facility, the QUT. They no doubt would have incurred costs. I am sure that they looked at their own position as to whether there may have been some contribution on their part to what appeared to be an area that was, for want of a better term, segregated—in this case, facilities at the university that were not available for use by these three students, at least.
We had the Human Rights Commission involved. Obviously, they had a role to play. There is absolutely no doubt that. if one were able to make a cost assumption about their contribution. we could find ourselves in the scope of between $100,000 and $200,000 to deal with a matter that, even if it had been upheld, would seem to have been somewhat on the trivial end, somewhat on the lighter end, in terms of a question that needed to be answered.
When you add to that, Attorney, the human cost to these three students and, I expect, their families—these are young people, so their parents, their brothers and sisters, and partners, if they have been blessed in life with partners—the stress and distress, the fear, would be quite significant. We know of course that they could not help but suffer some reputational damage. I made the point earlier that in decades to come, when fellow students or alumni are reminded of their identities, they will not be remembered for their athletic prowess or their intellect; they will be remembered as being the students involved in this particular incident. I am sure that prospective employers would reflect upon the circumstances that gave rise to their dilemma up when they consider them for employment or some form of appointment.
The statement was made, I think, by one of the students, that the process itself was a punishment. They had to endure this for a terribly long period of time. This all played out eventually in a very public way. I cannot imagine the stress and turmoil in their lives, and the distraction, as they went ahead and battled this. On top of all that, as a matter of expediency, as often happens in civil cases, they settled. They paid $5,000, which, for all the students I know, would mean the sale of a liver, an arm or a leg for them to be able to fund that sort of settlement.
So, all in all, Attorney, we have hundreds of thousands of dollars expended, a great deal of it from the public purse. Important resources, like those of the Human Rights Commission, were distracted in these protracted and otherwise seemingly trivial issues. There were lawyers representing them pro bono, so there is a cost involved in that—we all know there is no such thing as a free lunch. I am sure that I have missed four or five other features.
I am sorry that I have spent so much time laying the framework for that, but it does lead me to the question. Without going to the substantive adjustments here to the language, Attorney, are you able to reflect upon what the changes to process might be, notwithstanding all other things, that will to some extent mitigate or help us to avoid circumstances like the QUT case into the future?
Yes, Senator O'Sullivan, I can. We are actually not up to the process amendments yet, but now is as good a time as any to address the issue that you raise.
May I say at the outset that, when the history of freedom in Australia is written, the QUT students will be remembered as heroes. These young men will be remembered as heroes, and their legal representatives, led by my esteemed colleague from the Queensland bar Tony Morris QC will also be remembered as Australian heroes—just as the people who persecuted them, like Cindy Prior, will go down in history as villains.
Senator O'Sullivan, the purpose of schedule 2 of the bill, which we have not yet dealt with but it is appropriate as well to speak of in response to your question, is to avoid the persecution which the QUT students suffered and bravely stared down. Senator, you quoted the remark, 'The process is the punishment.' One of the problems with the Human Rights Commission, which, by the way, it itself in part acknowledges, is that its processes are too complex, and there are too few opportunities for the commission and, in particular, for the president to intervene at an early stage of a complaint to terminate the complaint if it is not evidently meritorious. That is one of the main purposes of the schedule 2 amendments, and in saying so I want to acknowledge Professor Triggs' contribution to the government's thinking. In drafting these amendments, we did not agree on every single thing, but in relation to the process amendments we agreed on the vast majority of the measures the government proposes.
Senator O'Sullivan, nobody can know the psychological cost to teenagers of being subjected to that kind of treatment. Ironically, they were the people who were harassed. They were the people who were harassed. They were the people who were, at least at one stage of the proceedings, humiliated. They were the ones who were the subject of the vile and false allegation that they were racist when they are entirely innocent.
It makes my gorge rise, I must say, to stand in a chamber like this and see parties of the Left mock victims the way they mock the QUT students, who richly deserve to be named Australians of the year, as did Tony Morris QC. Senator O'Sullivan, as to the cost, Mr Morris and those who instructed him did, in the fine traditions of the legal profession at its best, donate their services to fight the good fight for this important cause. But for their generosity and their professional benevolence, the cost to a person in the position of the QUT students, facing a case fought all the way to the Federal Court, would have been many tens of thousands of dollars. I am not quite sure how many hearing days it involved, but the process proceeded over, altogether, more than two years, I believe. For the cost in legal fees alone of a proceeding that long, I dare say that there would not have been any change out of a six-figure sum. So there is the psychological cost to these young men, and there is the potential cost that, but for the generosity of Mr Morris and those who instructed him, they or their parents would have been obliged to incur.
Because the process can be the punishment, we are amending, by schedule 2 of the bill, the Human Rights Commission Act to allow for early intervention at the threshold by the president to terminate unmeritorious or hopeless complaints. We are limiting the capacity of unmeritorious complainants who want to game the system, to use the courts as a vehicle to try and game the system, to try and extort a financial settlement out of a person against whom a complaint has been made. There are various other procedural reforms as well to ensure that there is a timely resolution of complaints, that there is a swift dismissal of unmeritorious complaints and that there are strict natural justice obligations that do not exist as thoroughly as they ought to in the act as it stands at the moment.
So, Senator O'Sullivan, I hope that addresses the issues that you had in mind. You are a scholarly man, I know, Senator O'Sullivan, so you would be well familiar with Franz Kafka's novel The Trial, which is all about that proposition that subjecting a person to a vexatious and long legal or administrative process can itself be punitive. How ironic is it that it is the very institution in our society designed to uphold and vindicate human rights that has been used by vexatious people as a vehicle to oppress and deny the human rights of innocent respondents? As a result of the government amendments of this bill, which I hope will be passed through the parliament tonight, the vicious and vexatious use of the Human Rights Commission by such people will be much more difficult, if not impossible.
I want to come back to what the Attorney said earlier in reference to the Oxford dictionary. I managed to have the dictionary definition of 'harass' here. It says that 'harass', the verb, means 'subject to aggressive pressure or intimidation'—we are not dealing with intimidation. Then 1.1 is 'to make repeated small-scale attacks'. I come back to this point, Attorney. I accept your explanation about not being present in dealing with social media and electronic communications; however, I am struggling with the concept of 'harass' in the singular. All the dictionaries that I have consulted make it quite plain that it is about repeated attacks or ongoing harassment. I seek comfort because, at the moment, I am struggling to support this in the event that someone puts up a single tweet or a single Facebook post or sends a single email or there is a single instance that someone finds annoying, and that constitutes harassment under the definition or under the amendment that you are proposing in this bill.
I did consult the Oxford English Dictionary, and one of the senses given—there are several—allows for a single act. But, you are right, Senator Bernardi, that the most common use of the word 'harassment' does contemplate a multiplicity of acts, and that is the only way in which the word is defined in the Macquarie Dictionary, so the lexicographers have a difference about this. In the case law, most of the case law suggests a multiplicity of acts, but there is at least one decision, a case in the Federal Court called Hall v Sheiban in 1989, in which one of the judges suggested that a single act in certain circumstances could constitute harassment. If the lexicographers cannot agree and the judiciary cannot agree, who are we, mere senators, to resolve the issue?
That is why, Senator Bernardi, the government is inserting this amendment: to put the question beyond doubt, to give the word 'harass' an extended meaning, if there is any doubt about it, so that, under the extended definition that this amendment provides for, the most normal meaning of the word 'harass'—that is, a series or multiplicity of acts—would constitute harassment, but a single act could constitute harassment as well.
Senator Bernardi, there is no ambiguity because this subsection makes it perfectly clear. If I may read it to you and read it onto the record in case there are people following this debate, we would insert a new section 2B into section 18C so that it would now read:
For the purposes of subsection (1)—
which is the head provision—
an act may be:
(a) a single isolated act; or
(b) one of a series of acts; or
(c) one of a group of related acts.
Now, that actually removes any ambiguity whatsoever and gives the word 'harassment' its widest connotation.
We obviously have different views about ambiguity. In the common parlance and the acceptance from most of the dictionary definitions as well as, I think, the reasonable man test that you are also trying to change into 18C—or the reasonable person test, for risk of causing offence—'harass' means multiple instances. You have cited one court case from 1989 in which a Federal Court judge found a single instance. Wouldn't it be much more prudent to use the common and accepted understanding of what 'harass' is rather than open it up to claims where a single Facebook post, a single tweet or a single comment could be claimed to be harassment and subject the individual who had said or written those things to the process of 18C, which is deleterious?
No, it would not be simpler. The way courts read statutes is that, where a statutory definition is given as we propose to give it here, the statutory definition prevails over the dictionary definition. If it be the case that there is no doubt that in ordinary speech 'harassment' means a multiplicity of acts then that ordinary-language meaning yields to the explicit statutory definition in proposed subsection 2C. In this case, as I have already said a couple of times now, the dictionaries themselves define the word 'harassment' in both senses and the case law is also divided on the question. Where the dictionaries are divided on the question and the case law is divided on the question, the sensible thing, it seems to me, is to put it beyond doubt by a very simple and clearly worded amendment which makes it plain that either a single act or a series of acts can constitute 'harassment', and that is the way the courts would read the provision.
Thank you, Attorney. I will not delay the Senate any longer. We are going to disagree on this. In the event that this amendment is successful, I will then be moving a subsequent amendment to change the understanding of 'harass' to mean more than a single instance.
I would like to ask the Attorney-General about the three inquiries which preceded the introduction of the original law in 1994 by the then Attorney-General, Michael Lavarch, and which we are seeking to amend today. I wanted to check my understanding of what it was that those three inquiries recommended and how the law as it stands today is consistent or, in fact, not consistent with what those laws recommended. I am indebted to the member for Goldstein, Tim Wilson, for my understanding of this issue, but I will seek your views on whether this is correct.
Mr Wilson wrote in an article for The Australian newspaper on 9 November last year that, in fact, the recommendations of those three inquiries, including the royal commission, were not reflected in the law that was subsequently introduced and passed by the parliament. In support of his view he cites the bills digest produced by the Parliamentary Library into the bill. It says:
… the Racial Hatred Bill 1994 is in some aspects completely contrary to the recommendations of these three reports.
Attorney-General, in your understanding of what those reports recommended and what the parliament subsequently adopted, is the law consistent with what they recommended? If it is not, in which way is it not consistent?
That is a very good question, if I may say so, Senator Paterson. You are right and the member for Goldstein, Mr Wilson, is right as well. When section 18C was inserted into the Racial Discrimination Act by the 1995 amendments, those amendments themselves were designed to give effect to the recommendations of an inquiry conducted by what was then called the Human Rights and Equal Opportunity Commission, which was the predecessor body of the Australian Human Rights Commission. That inquiry was called the National Inquiry into Racist Violence. There had been two earlier inquiries which touched upon the matter. One was the Royal Commission into Aboriginal Deaths in Custody. There was a third inquiry as well, the name of which I do not quite recall. But there were three. But the immediate inquiry, whose findings were specifically adopted by the amendments to the Racial Discrimination Act in 1995, was the Human Rights and Equal Opportunity Commission's inquiry entitled National Inquiry into Racist Violence, and that inquiry, as did the other two, specifically recommended that the word 'harass' be included as one of the species of prohibited conduct. It has never been explained why that recommendation was not adopted by the Keating government given that the purpose of part 2A of the Racial Discrimination Act, which includes section 18C, was explicitly, as Mr Lavarch, the then Attorney-General, said in his second reading speech, designed to give effect to the recommendations of the HREOC National Inquiry into Racist Violence.
But I must say that anyone who says—and we have heard from many opposition and Greens speakers in this debate—they do not want section 18C changed, whatever else they may be saying, is necessarily saying they do not want racial harassment to be prohibited in Australia. They do not want to give effect, albeit belatedly, to the recommendations of the Human Rights and Equal Opportunity Commission's National Inquiry into Racist Violence. The government does want to do that, and I think it is a disgrace that others who denounce those who are promoting this bill as seeking to encourage racism of all things try to prevent us reforming the bill to give effect to the findings of the National Inquiry into Racist Violence.
I have a related follow-up question. I understand that the person who conducted the inquiry on behalf of the then Human Rights and Equal Opportunity Commission into racist violence was Irene Moss. She was recently interviewed by The Australian newspaper journalist Chris Merritt, who has followed this issue with great interest and with great accuracy, in my view. In his interview with Irene Moss, she told him that in fact her view and the view of the inquiry was that it would be a bad idea to go down that route of preventing mere offence and insult, because that could lead to the law being applied in a way it was not intended and being applied in a broader way than was intended, and that it may end up capturing conduct that was not in fact intended. She reiterated her view from the early 1990s again today, saying that she believed her original view has been proven correct by the application of the law in the courts, particularly in recent cases, and that she was right then to warn against the adoption of a law which sought to limit offence based merely on offence and insulting conduct.
One of the primary instigators of this original law has warned against specifically the route the law went down. She has since said that all her fears about this law have come true and has suggested that we revisit this law and reflect its original intentions. Why is it, in your view, that many people have said in this debate that only those who want to unleash racism are in favour of changing this law? I presume they are not referring to Irene Moss, and I presume they do believe that Irene Moss wants to unleash racism.
I suspect those claims have been made in this debate because of dishonesty and the dishonesty of those who have made the claims and because of the opportunism of those who have made the claims. They are certainly not the truth.
Senator Paterson, you are right to say that Irene Moss, a former Race Discrimination Commissioner, was in fact the author of the Report of the National Inquiry into Racist Violence in Australia. And you are right when you say that she did make that recommendation, and she has made the observations that you have quoted. By the way, she is not alone among people, many of whom would be regarded as inhabiting the left of the political spectrum, who have expressed the view that the removal of 'offend' and 'insult' and the insertion of 'harassment' is a good thing. Those people include Warren Mundine. They include the Hon. Jim Spigelman, a former Chief Justice of New South Wales and at one time the principal private secretary to Mr Gough Whitlam. They include Mr Paul Howes. They include Professor George Williams of the University of New South Wales, a former Labor Party preselection candidate and a well-known constitutional scholar and commentator. They include the Hon. Ron Sackville, former judge of the Federal Court. They include the journalist David Marr. They include the editorial writers of The Sydney Morning Herald, who have also expressed that opinion. They include the Australian Law Reform Commission, which in its report on traditional rights and freedoms, delivered in December 2015, on page 119, had this to say about section 18C of the Racial Discrimination Act:
In particular, there are arguments that s 18C lacks sufficient precision and clarity, and unjustifiably interferes with freedom of speech by extending to speech that is reasonably likely to ‘offend’. The provision appears broader than is required under international law to prohibit the advocacy of racial hatred and broader than similar laws in other jurisdictions, and may be susceptible to constitutional challenge.
That was the opinion of the Australian Law Reform Commission, and its chair, Professor Rosalind Croucher, who in that particular reference was assisted by the Hon. John Middleton, a much respected judge of the Federal Court of Australia, and Emeritus Professor Suri Ratnapala of the TC Beirne School of Law at the University of Queensland. And of course we had in an interview with Fran Kelly last November, even the president of the Human Rights Commission, Professor Gillian Triggs, observing that it was appropriate to review and strengthen section 18C. When I quoted her in the Senate hearing last Friday, there were some unsavoury interjections from certain Labor and Greens senators—
Hard to believe!—until Professor Triggs said; 'What Senator Brandis has just said is absolutely correct. I did say that, and that is my view.' If you want to make the case that Warren Mundine is a racist, that Jim Spigelman is a racist, that George Williams is racist, that Rosalind Croucher is a racist, that Gillian Triggs is a racist, that David Marr is a racist, that The Sydney Morning Herald is a racist newspaper and that the Australian Law Reform Commission is a racist organ, as those on the other side of this debate do, go right ahead. But those are the people who have lined up on the government's side of this argument.
That is the lamest strawman argument I have heard since I was elected into this place, which is a fair while ago, and that is really saying something. What a load of absolute tosh we are listening to from the Attorney-General this evening. He reads from the Australian Law Reform Commission report a lengthy passage which does not call in any way for section 18C of the Racial Discrimination Act to be changed. Not one word of the passage the Attorney read out is a call for change or an opinion that it ought to be changed.
He quotes Professor Triggs quite accurately, saying she wanted to review 18C and strengthen it, which is emphatically not what this government is proposing to do with the amendments that are currently before the chamber. He is quoting Professor Triggs accurately, but in fact he is not benefiting his argument in any way whatsoever by doing so. I have formed the view that if we are going to have a filibuster from the government, which is clearly what is going on in here, then I have a few things I would like to place on the record.
I want to start by talking about the interactions between lawyers representing The Australian and the late Bill Leak and the Human Rights Commission, during the Human Rights Commission's good-faith attempt to settle that matter expeditiously, which was met at every turn by the legal representatives of The Australian and Mr Leak with obfuscation, delay and aggression.
Clearly what was going on here was that key figures at The Australianand I presume with the acquiescence of Mr Leak—made a decision very early on that they were going to use the complaint that somebody else had submitted to the Human Rights Commission as a weapon not only in their ongoing campaign against section 18C of the Racial Discrimination Act but in the ongoing vendetta that was being conducted by The Australian and Mr Leak against the Human Rights Commission and specifically against Professor Gillian Triggs. It is not in any way inaccurate to suggest that the Human Rights Commission effectively begged The Australian and Mr Leak to submit a section 18D defence. Senator Paterson can smirk all he likes, but the facts are the facts.
The Attorney can loll around superciliously in his chair all he likes, but the facts are the facts and they are on the record in black and white. They are loud and clear. The facts are that the commission twice wrote to the legal representatives of The Australian and Mr Leak and twice asked for a submission to the Human Rights Commission from the legal representatives of The Australian and Mr Leak and on behalf of The Australian and Mr Leak in regards to a section 18D defence.
In fact, when there was reference to section 18D in a communication from the lawyers of The Australian to the Human Rights Commission, the commission wrote to the legal representatives of The Australian and Mr Leak and asked whether that could be taken to be a submission in regards to section 18D. The legal representatives of The Australian and Mr Leak wrote back to the commission:
… we have made no such “statements”.
It goes on to say:
You ask us to—
and this is in quotes because it quotes the previous communication from the commission—
“provide a written submission from Mr Leak covering [a number of specified] points and any other points he would like to make, so that they can be considered by the Commission as part of [your] inquiry into this matter”. We confirm that Mr Leak does not intend to make any submission to your inquiry, whether in writing or otherwise.
There it is in black and white. Despite being asked twice to make a submission on section 18D, the legal representatives of Mr Leak and The Australian refused to do so.
You have to ask yourself: why did they refuse to do so? The answer is blindingly obvious. They wanted to run a vendetta against the Human Rights Commission, because of course they had already submitted to the commission that in their view—a spurious view though it was—the Human Rights Commission ought not hear the complaint against Mr Leak and it should be heard by an independent person. That was the view expressed by the legal representatives of The Australian and Mr Leak. That had no merit and the commission quite rightly, in a very lengthy and considered response, said that they had considered that submission and determined that in fact they were the appropriate body to hear it and the accusation of apprehended bias that was made was a complete load of rubbish. Just to be clear, that last phrase is me paraphrasing the commission. Those are not the words the commission used.
But make no mistake there was a vendetta being run. There was a murky, nasty, aggressive campaign being run by The Australian and Mr Leak against the Human Rights Commission and Professor Gillian Triggs. It should be named up, and I am naming it up here tonight. They got overtaken in that vendetta by their desire to continue their campaign and that is why they refused to make a section 18D submission. Professor Triggs has been very clear—and I will paraphrase her here—in saying that, if Mr Leak had made a section 18D submission, it is very likely that the commission would have acted to immediately terminate that matter. Of course it is blindingly obvious that Mr Leak and The Australian had a section 18D defence in regards to the cartoon that was the subject of the complaint. It is blindingly obvious that Mr Leak—
Senator Brandis interjecting—
You will get your chance in a minute, Attorney. I have got a lot more to say yet, mate. I have another seven minutes, so you sit quietly there, Attorney. You will get your chance in a minute. It was blindingly obvious to any independent and reasonable person watching what was going on that The Australian and Mr Leak were more interested in running their vendetta against the commission and Professor Triggs than they were in settling that matter, and that means that all of the arguments that we have heard about how terrible a trauma this whole thing was for people at The Australian and Mr Leak are premised on marshmallows, because they could have submitted on section 18D at any time and the overwhelming likelihood would have been that the commission would have acted to dismiss the case.
But they did not, because remember they were using the complaint that was not made by the commission; it was made by another person. The commission had statutory responsibilities to conduct an inquiry in regards to that complaint, and they did that and they did that properly. At all times they encouraged The Australian, Mr Leak and the legal representatives of The Australian and Mr Leak to submit a section 18D defence to the commission but they would not do it because they were more interested in having a fight than they were in settling the matter.
So it is gross hypocrisy for Senator Brandis, Senator Paterson and all the other agents of the IPA in this place to come in here and use this case as any kind of an argument against 18C—for a start. It is also rampant hypocrisy for Senator Brandis, Senator Paterson and any of the other agents of the IPA in this place to come in here and use the Leak case as an argument for reform of the commission's processes. I agree that there are actually other cases that do at least constitute an argument for reform of the commission's processes. But not the Leak case—that is a spurious argument because it is blindingly obvious that neither The Australian nor Mr Leak had any interest whatsoever in settling that matter. They were spoiling for a fight. The whole raison d'etre of The Australian in recent times has been to run a vicious, vindictive, appalling campaign against the Human Rights Commission, against Professor Triggs and against section 18C of the RDA. Make no mistake, that was their motivation here. They did not want to settle this matter, they wanted to prolong it because they thought it suited the vendetta and the campaign they were running.
We have heard ad nauseam the arguments from Senator Brandis, Senator Macdonald, Senator Paterson—at nauseating length—and Senator Abetz. They are all seeking to use the Leak case as an argument for reform of 18C, as an argument for reform of the processes of the Human Rights Commission. Those arguments are spurious. They are not based on a reasonable observation of the facts of the matter regarding the Leak case. The commission was falling over itself to seek a submission from Mr Leak, from The Australianor from the legal representatives of Mr Leak and The Australianin regard to 18D. There was a clear, unambiguous defence under 18D—
Senator Bernardi interjecting—
It had everything to do with 18D.
Senator Bernardi interjecting—
I will take that interjection even though I did not hear it—it was a bit of a mumble—
Senator Bernardi interjecting—
You can just mumble away like Bill the Steam Shovel over there all you like. It does not worry me, because what I am doing is reading the facts into the Hansard so that anyone who is listening to this debate, anyone who might read the Hansard in the future, knows the facts. And the facts of the matter are that the legal representatives of Mr Leak and The Australian steadfastly refused to make an 18D submission to the Human Rights Commission. The president of the commission, Professor Triggs, has given evidence to the Legal and Constitutional Affairs Committee that, had such a submission been made, it was highly likely that the commission would have moved immediately to dismiss the matter. Make no mistake, Mr Leak had an unambiguous defence under section 18D; he just chose not to exercise it—and neither did the Australian.
You always know when Senator McKim is on the ropes, because the volume of the rhetoric gets dialled up and the personal abuse of other senators and the questioning of their motives becomes more and more ugly. Nevertheless, Senator McKim, leaving aside all the personal abuse, venom and vituperation that has fallen from your lips in the last 15 minutes, has it not dawned on you that you have just made an extremely strong case for the government's procedural amendments? To use your words, if it be the case that Mr Leak had a 'clear and unambiguous 18D defence', that it was 'blindingly obvious' that he had a section 18D defence and that Professor Gillian Triggs, the president, was 'virtually begging him to make a submission relying on an 18D defence', which 'would have undoubtedly succeeded', then that is the strongest argument you could possibly make for why there should be, as the government amendments propose, an early termination power vested in the president so that the president does not have to await a joinder of issue between a complainant and a respondent where palpably the respondent's position is meritorious and undoubtedly the respondent's position would be vindicated were the issue to be joined between the complainant and the respondent. If that is the case, as Professor Triggs herself has asked for, there should be an early termination proceeding rather than requiring there to be a joinder of issue between the parties. So in view of the argument you have just made, Senator McKim, no doubt you will be voting for the government's amendments on schedule 2.
I just cannot leave this matter without responding to what the Attorney said. As the Attorney well knows, the Greens have long been on the record supporting many procedural changes to the way the Human Rights Commission functions. In fact, in the report that we made—
It is not my fault if the Attorney-General has not done his homework and read the dissenting report in my name on behalf of the Australian Greens, which was put in to the Human Rights Committee report, which made it very clear that the Greens supported the submissions of the Human Rights Commission to the Human Rights Committee which recommended a number of changes.
So for the Attorney to get up and suggest that the contribution that I have just made is in any way an argument for the entirety of the government's proposed procedural changes is entirely false. The Attorney well knows that many of the changes he is proposing in this legislation are not supported by the Human Rights Commission. The Greens' position will continue to be that we will support the reasonable amendments proposed by the government that are in line with the views of the commission, and that we intend to move our own amendments to the bill currently before the Senate to ensure that the procedural amendments made by this legislation, should it pass, are in fact in line with the wishes of the Human Rights Commission.
The Attorney has fallen flat on his face here. I know he thinks he is the smartest bloke in the room, but the simple fact of the matter is that he is not quite as smart as he thinks he is. His argument, clever though it may have sounded, has no merit whatsoever—and I note that he in no way addressed the substance of my previous contribution, which was, in effect, that neither The Australian nor Mr Leak had any genuine interest in settling the matter that was before the Human Rights Commission expeditiously and that, in fact, to the contrary, they intended to use that complaint, which was put before the Human Rights Commission by another person, as a weapon in their ongoing vendetta against the commission, against Professor Triggs and against section 18C of the Racial Discrimination Act.
I have been listening to this debate tonight and I want to follow on from what Senator Cory Bernardi said and ask about the word 'harass'. I have looked at the dictionary and it says that 'harass' means 'to make repeated small-scale attacks', 'to annoy with repeated attacks' or 'to disturb persistently'. That is from the Macquarie dictionary. Item (2B)(a) of the bill refers to a 'single isolated act'. Senator Brandis, regarding 'a single isolated act', I know you referred to material on the internet and tweets. I am not a legal mind—I do not come from that background—but, if a court makes a decision, it is based on what is actually in law. That means, if it is based on the law of (2B)(a), it must come down to a single isolated act. If there is nothing in the law, then the judge would have to go back to the definition of the word 'harass', which would go back to the definition in the dictionary, which refers to multiple acts. So is it feasible to say, if we legislate it, that the courts will determine it from the point of view of a single act? Is that how the courts will interpret it?
The short answer is yes, assuming this amendment were to be agreed to. The most common meaning of the word 'harass' is, as you rightly say, 'a series of acts' or 'a multiplicity of acts', but there is some doubt about that because there is at least one sense in the Oxford dictionary's definition of the word and there is one judicial decision in Australia, a case called Sheiban, which suggest that a single act may constitute harassment. So there is a degree of ambiguity about whether or not a single act may in particular circumstances constitute harassment.
To avoid, or to clear up, that ambiguity, the purpose of this subsection would be to put it beyond doubt that harassment could be constituted by a single act or by a series of acts—either would do—and a court approaching a particular case in which harassment was alleged would interpret the word 'harassment' in the act according to this subsection so that it could have regard to an act which was a single isolated act or it could have regard to a series of acts. So this broadens to the broadest possible degree what the understanding of 'harassment' could be.
I will go back to the word 'harass' again. People in a heated moment, even on the internet where they respond to something that they have seen, might make a comment or tweet or say something—but it is in the heat of the moment, in reaction to what they may read or see or whatever. But then, if they were to harass, they would do it more than once, so it really becomes vexatious—they are really harassing. So, if someone makes a stupid statement or a comment at any time which could see them taken before the Human Rights Commission through the Racial Discrimination Act, wouldn't it be best, if they are vexatious and continually harass, for it to be looked at under those circumstances rather than just on a single act?
Senator Hanson, it would be. On this definition both would do. A series of acts could constitute harassment or a single act might constitute harassment as well. It all depends on the facts of the particular case.
As I have already agreed with you and with Senator Bernardi, the most normal use of the word harassment does contemplate a series of acts but, as I said before, there is some authority both in the dictionaries and in the case law to suggest that a single act might do. So, the purpose of this amendment is merely to get rid of the ambiguity and make it clear that a single act could constitute harassment or a series of acts could constitute harassment, depending on the facts of the particular case.
The CHAIR: The question is that amendment (1) on sheet HV208 be agreed to.
I will not speak long on this, because I think there is one main point that needs to be highlighted. We have heard lots of flowery language and lots of debate amongst members of the government with each other, but the critical issue here is that the change in this schedule reduces the protections that are afforded to victims of racial discrimination and racial hate speech by narrowing the scope of behaviour that may constitute offending conduct. Labor does not support that narrowing of scope and, by the amendments on the running sheet here, it is clear that the Australian Greens and the Nick Xenophon Team similarly will not support that narrowing.
We could spend hours more listening to this flowery language and debate about the principles of free speech and harassment, but these provisions have stood the test of time, of two decades. They have, as was highlighted earlier, the support, as shown by polling, of 80 per cent of Australians. This esoteric debate amongst members of the government should stop. Senators, in supporting Labor, the Australian Greens and the Nick Xenophon Team in opposing schedule 1, will stop this waste of the Senate's time that has been occurring this evening.
As Senator Collins observed, the terms in which the Labor Party opposes schedule 1 is identical to terms that had been flagged and circulated by the Australian Greens and, for that matter, are identical word for word to terms that had been flagged and circulated by Senator Griff on behalf of the Nick Xenophon Team. This is the crux of the sad, sordid and sorry debate that has been going on in this country for far too long about section 18C of the Racial Discrimination Act. This is the Senate's opportunity to do the right thing. This is the Senate's opportunity to show that collectively we have listened to multicultural Australia and heard the abundant evidence given by multicultural Australia to the human rights committee, which conducted an exhaustive inquiry into section 18C of the Racial Discrimination Act. This is the Senate's opportunity to demonstrate that it has listened loud and clear to the people who have had the courage to stand up and talk about the racism that they have faced in this country. This is the Senate's opportunity, finally, to do the right thing and to end the push, at least for now, to change 18C in any way. This is the Senate's opportunity to stand up and say, 'We collectively refuse to take action that will make it easier to be racist in Australia.'
Make no mistake: no matter what the intent and the motivation of people calling for this change—and I am happy to say I do not think everyone calling for this change genuinely wanted to make it easier to be a racist in Australia, although I am also happy to say I think some did genuinely want to make it easier to be a racist in Australia—the effect of weakening 18C would have been to send a message out into the Australian community that it is now easier to say racist things and be racist in Australia. That is a message that we cannot afford. There would never be a good time to make it easier to be a racist in Australia, but now would have been the worst time of all to make that change.
So the Greens will proudly support this change—alongside the Australian Labor party and the Nick Xenophon Team and potentially alongside others, although they can, of course, speak for themselves—because we want to show that we have listened and that we are standing up for the magnificent, rich tapestry that is multicultural Australia—that tapestry that has underwoven so many beautiful and brilliant things in our community. It is a tapestry that has been a foundation for so much of the infrastructure that has been built in this country. It is a tapestry that enriches the life of every Australian. We so strongly support multiculturalism. It is a fundamental of the Australian way of life. In supporting this change, we will go proudly on the record as supporting those beautiful things and defending the protections that exist in current Australian law against racism.
The Senate trans cript was published up to 22:15 . The remainder of the transcript will be published progressively as it is completed.